People v. Bannister

Decision Date04 December 2007
Docket NumberNo. 1-04-2894.,1-04-2894.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James BANNISTER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Public Defender, Cook County, Chicago (Edwin A. Burnette Public Defender, Erica Reddick, Assistant Public Defender, of counsel), for Appellant.

Richard A. Devine, State's Attorney, Chicago (James E. Fitzgerald, Alan J. Spellberg, John E. Nowak, of counsel), for Appellee.

Justice HOFFMAN delivered the opinion of the court:

Following a jury trial in 1991, the defendant, James Bannister, was convicted of two counts of first degree murder and sentenced to natural life imprisonment. His convictions and sentence were affirmed on direct review. People v. Young, 263 Ill.App.3d 627, 200 Ill.Dec. 134, 635 N.E.2d 473 (1994). He subsequently sought relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)), asserting, inter alia, actual innocence premised on newly discovered evidence of the recantation of trial testimony against him. The defendant's postconviction petition initially was dismissed without an evidentiary hearing on this question. On appeal, this court reversed and remanded for an evidentiary hearing on the recantation issue. See People v. Bannister, No. 1-97-2876, 299 Ill.App.3d 1119, 251 Ill.Dec. 265, 740 N.E.2d 95 (1998) (unpublished order under Supreme Court Rule 23). Following the evidentiary hearing, the trial court granted the defendant's request for postconviction relief, vacated his convictions, and ordered a new trial. The defendant was retried in a bench trial in 2004 and again found guilty of two counts of first degree murder and sentenced to natural life in prison.

On appeal, the defendant challenges his convictions, asserting that (1) his retrial violated his right to be free from double jeopardy, (2) he was denied due process and deprived of a fair trial based upon the plea agreement entered into between the prosecution and co-defendant Michael Johnson, (3) by entering into the plea agreement with Johnson, the State usurped the Governor's exclusive right to pardon or commute sentences, (4) the trial court erred in allowing the State to prosecute him under an indictment that allegedly had been obtained through the use of perjured testimony, (5) the trial court erred in permitting the State to call Deanda Wilson as a witness where Wilson's prior inconsistent testimony had been found to be untruthful, (6) he was deprived of due process and a fair trial by cumulative error, and (7) the State failed to prove his guilt beyond a reasonable doubt. For the following reasons, we affirm the defendant's conviction and sentence.

To resolve the issues raised on appeal, it is necessary to consider the facts and procedural history of the defendant's prior prosecution. The defendant was charged with the November 9, 1989, murders of Dan Williams and Thomas Kaufman in gang-related shootings near the Stateway Gardens housing complex. Also charged with the murders were co-defendants, James Young, Michael Meyers, Kevin Young, Thomas Carter, Eric Smith, and Michael Johnson. The defendants were tried jointly by a jury, with the exception of Michael Johnson, who was granted a severance and tried separately. The evidence presented at the consolidated trials of the defendant and other co-defendants is summarized as follows.

The shootings originated from the ground and first-floor porches of the building at 3517-3519 South Federal Street. The shooters chased Williams toward an Illinois Institute of Technology (IIT) research building across the street, where he stumbled to the ground. Both Williams and Kaufman, a security guard stationed inside the doors of the IIT building, were killed by the gunfire. The State presented evidence in support of its theory that Williams had been shot, in a case of mistaken identity, to avenge the sexual assault of co-defendant Kevin Young's girlfriend by members of a rival street gang, one of whom was also named "Williams."

At the joint trial of the six co-defendants, the only direct evidence against the defendant was the testimony of Deanda Wilson, who was then 12 years old and a member of the Del Vikings street gang. Wilson testified that, on the night of the shooting, he was with Willie Sims on the first-floor porch of 3519 South Federal Street when he saw the defendant and the six co-defendants, all of whom were dressed in black, approach the building. The seven individuals were all members of the Gangster Disciples street gang, a rival of the Del Vikings gang.

According to Wilson, the defendant and co-defendant Eric Smith arrived at the building first and waited near a janitor's closet under the building, at one point passing within 10 feet of him. Wilson and Sims then went to the second-floor porch where Wilson saw three co-defendants standing below him in front of the building and two co-defendants standing on the first-floor porch of a connected building. Williams was near a play lot in front of the building when someone called out to him. Following a verbal exchange, all seven men, including the defendant, stepped out from their positions and fired at Williams, who stumbled toward the IIT building and fell between its doors. Wilson was crossexamined regarding certain alleged inconsistencies in his testimony, such as whether the shooters were wearing masks over their faces and whether he could actually see the defendant and Smith from his vantage point.

Several other witnesses corroborated certain aspects of Wilson's testimony, including his version of how Williams was chased and shot by several men before he fell near the doors of the IIT building and Wilson's description of the shooters' dark clothing and the manner in which they left the scene. In addition, Denise Brady and Ruth Wilson, Deanda's mother, corroborated Wilson's identification of co-defendants Kevin Young and Thomas Carter.

The defendant presented an alibi defense, calling four witnesses who testified that he was at home at the time of the shooting. At the conclusion of the trial, the jury found the defendant guilty of two counts of first degree murder, and he was sentenced to life imprisonment. The defendant's convictions and sentence were affirmed on direct appeal. Young, 263 Ill. App.3d at 627, 200 Ill.Dec. 134, 635 N.E.2d 473.

In April 1993, the defendant filed a pro se petition for postconviction relief in which he requested a new trial, and a supplemental petition was filed by counsel in July 1995. The supplemental petition raised several issues, including actual innocence based on newly discovered evidence of Wilson's recantation of his trial testimony implicating the defendant. The postconviction petition was supported by the affidavit of Wilson, who attested that he was 15 years old and a member of the Gangster Disciples. In his affidavit, Wilson recanted his trial testimony in which he identified the defendant as one of the shooters he saw on November 9, 1989. Wilson also gave a court-reported statement in which he stated that he had seen seven people involved in the shooting but could positively identify only four. According to Wilson's statement, although he had identified seven shooters at the codefendants' joint trial, he was not certain about the identity of three of those people, including the defendant. He did see two people standing under the building, as he had testified at trial, but he was unable to identify them because they were wearing masks. Wilson further attested that when he went to the police station, a detective showed him pictures of seven men, and those were the people he said were involved in the shooting. Wilson claimed that before he testified at trial, he told both a detective and an assistant state's attorney that he was not certain about the identity of all seven of the shooters.

The court initially dismissed the petition without conducting an evidentiary hearing on the issue of Wilson's recantation. In so ruling, the court found that the recantation was unreliable and untrustworthy. The court particularly noted that, since trial, Wilson had switched allegiance to the Gangster Disciples, the street gang to which the defendant belonged. In denying the defendant's request for postconviction relief based on ineffective assistance of counsel, the trial judge remarked, "as I look back, I believe I would have found [the defendant] not guilty in a bench trial * * * [the] [j]ury thought otherwise * * * I don't think [defense counsel's decision not to call two witnesses] amounts to incompetence."

In denying the defendant's motion to reconsider the dismissal of his postconviction petition, the trial judge stated,

"I repeat this is a difficult situation for me because it's one of the few times in 20 years I ever disagreed with a jury's verdict on a particular defendant * * * had it been a bench trial[,] I would have found [the defendant] not guilty, given the identification and his alibi. But it was for the jury to decide. They could have reasonably found him guilty, * * * there is nothing under the law * * * that would require me to change the result brought about by the jury."

On appeal from the dismissal of the defendant's postconviction petition, this court reversed and remanded, holding that the circuit court should have conducted an evidentiary hearing on the question of Wilson's recantation of his trial testimony implicating the defendant.

On remand, the circuit court conducted an evidentiary hearing and found that, with respect to the defendant and co-defendant Smith, Wilson's trial testimony was not accurate and truthful and that there was no corroboration for his implication of the defendant and Smith in the shooting. The court concluded that, as to the defendant and co-defendant Smith, the out come of the trial "would probably have been different if not for Wilson's perjured testimony." Accordingly, the...

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